“Millions in damages” likely for brain damaged Kendal Calling worker

25th September 2013

Music festival organiser's planning was "woefully inadequate" - Judge
A Radcliffe man left with a serious brain injury after a devastating electric shock whilst working at the Kendal Calling music festival is likely to receive millions of pounds in damages following a court ruling.

Festival organisers and two other defendants were heavily criticised for the serious health and safety failings and “wholly inadequate risk assessments” – doing nothing to take into account dangerous overhead power cables - which led to the life-changing injuries Donald Berry sustained just days before the event three years ago.

Mr Berry, 47, had been operating a crane for his employer Star Autos Ltd, installing portable buildings and other similar constructions at the venue in Lowther Park, near Penrith. But changes were made to the design of the site and one of the locations was directly beneath overhead live power cables. During the course of carrying out his work, the crane came into contact with a cable and Mr Berry received a massive electric shock.

“The incident left Donald completely devastated,” said Martin James, a serious injury specialist with Fentons Solicitors LLP, representing Mr Berry and his wife, Carol. “He immediately suffered a serious brain injury, cardiac arrest and damage to his internal organs. Three years later, he is still immobile, unable to speak or communicate, and in need of constant care.”

Mr James said he was delighted that - following a week-long trial at the Manchester High Court of Justice in July - The Honourable Mr Justice King had ruled that the defendants were to be held 75% liable for the injuries Mr Berry sustained.

“Ensuring the long-term care of Donald is of the utmost importance and will prove incredibly costly,” said Mr James, a partner at the firm. “Since this incident three years ago we have already secured more than £500,000 in interim payments, but today’s ruling means that we can now begin negotiating a full settlement which will safeguard Donald’s financial security for the remainder of his life.”

The three defendants - Mr Berry’s employer Star Autos Ltd, Kendal Calling Limited, and the firm contracted to supply the buildings Ashtead Plant Hire – were all heavily criticised by Mr Justice King. He also said that despite the fact that ‘Kendal Calling Limited’ had gone into liquidation prior to the hearing, the action against company directors Andrew Smith and Ben Robinson – who had previously been prosecuted and convicted under section 3 of the Health & Safety at work Act 1974 – should still be considered live. Ironically the judgement was delivered on the first day of the 2013 Kendal Calling event, which is still organised by Smith & Robinson through a new company name.

In his summary, Mr Justice King said: “They (Kendal Calling) are in breach of Regulation 8 of LOLER (Lifting Operations and Lifting Equipment Regulations). Equally they are in breach of their common law duty to the Claimant, who entered the premises in order to deliver the cabin under their request and instructions of where to place it, in breach of common law duty to take all reasonable care.”

The judge referred to the fact that no power cables were shown on the site plan Mr Berry was using – despite the site’s owner drawing the festival organiser’s particular attention to them. “He drove them to the site of the field,” said Mr Justice King, “and as he said, he could not have been more unequivocal.

“His evidence, which I accept, is that (the festival organisers) were telling him that they had taken account of the existence of the cables and they would deal with the consequences of their existence. In fact (they) did nothing to take the cables into account.”

Dismissing the Defendants’ submission that a 50/50 split in liability was appropriate, the judge said that Mr Berry was clearly a very competent operator who was very qualified and held in high regard within his industry. Mr Justice King said that Mr Berry should not have been put in a position where he was effectively asked to determine for himself the safety of operating the crane in the allocated area.

“If I stand back from those assessments and the conclusions they lead to, the plan of the whole enterprise was woefully inadequate and they can be attributed to all three Defendants together, even if (the organisers) are primarily responsible,” he said.

He assessed liability at 75% against the defendants. Speaking after the ruling, Mr James explained that because of the Health & Safety proceedings against some of the various defendants in the case – the event organisers and the company responsible for Health and Safety at the site - the civil claim for compensation had been subjected to lengthy delays.

“Donald has been so severely affected by the incident that he is still unable to communicate with anyone,” said Mr James. “The injuries he sustained on that day have changed his life, and the lives of his family, forever. But due to the nature and severity of his injuries, doctors are still unsure of the long-term prognosis for his recovery.

“One thing that is certain is that he will require constant medical care for the foreseeable future,” said Mr James. “Following this ruling, it is now hoped that an appropriate settlement can be reached which takes into account my client’s lost prospective earnings and also meeting his care needs and case management costs that he will likely incur over the coming years. The level of damages is likely to be several millions of pounds.”

Mr James said he was pleased the defendants had been so heavily criticised by the Judge, and that hopefully the liability ruling meant that negotiations could soon begin to bring to an end the legal claim on behalf of Mr Berry and his family. Speaking after the hearing, Carol Berry, 46, said the ruling had given her hope that her husband’s future care could soon be guaranteed.

“There was scant regard for Donald’s health, personal wellbeing and safety by all of the defendants on that day,” she said, “and it is only right that those responsible are being held to account. Donald and I were only married in 2008 and what happened to him that day has robbed us of our future years together. They took my husband away from me, a father away from his children and us away from Donald. I’m pleased that the Judge saw fit to make sure they will not get away with it.”

Mrs Berry said the three years since the incident had been a ‘living nightmare’. “Not only have we had to cope with what happened to Donald, we then had months of not knowing whether he’d ever get out of hospital or whether we’d ever be able to communicate with him again. He used to be such a strong, funny, exciting man with a passion for life. It just destroys me to see him the way he is now.”

Mrs Berry said she had also endured abuse as a result of inaccurate media reports concerning the incident and the extent of her husband’s injuries.

“Some of the things I read made it sound like Donald was making a claim for compensation after a slight injury, and we were in line for a windfall like we were going to win the lottery or something,” she said. “I couldn’t believe what I was reading. I think people should get their facts right before they start making up horrible things about people, and I only hope that they never find themselves in a situation like ours, this living nightmare, that we’ve been stuck in for three years.

“Whilst no amount of money can make up for what Donald has lost – and for what we have lost,” said Mrs Berry, “we hope that we will soon be able to begin to move on with our lives, safe in the knowledge that we will be able to provide him with not just our love, but with all the specialist care and treatment he will need in the future.”